The court held that while the NDPS Act imposes strict bail conditions, the accused's right to a speedy trial under Article 21 may supersede these restrictions, allowing for bail under certain circumstances.

JUDGMENT :

V. Narasingh, J.

1. Heard Mr. S. Panda, learned counsel for the petitioner and Mr. Pradhan, learned Additional Standing Counsel for the State.

2. The petitioner is an accused in connection with Special (NDPS) Case No.117 of 2019, pending in the file of learned Additional District & Sessions Judge-cum-Special Judge, Kantamal, arising out of Kantamal P.S. Case No.77 of 2019 for alleged commission of offences under Sections 20 (b)(ii)(C) of the NDPS Act.

3. Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Additional Sessions Judge-cum-Spl. Judge, Kantamal by order dated 21.04.2023 in the aforementioned case, the present BLAPL has been filed.

4. Perused the report dated 11.08.2023, submitted by the learned Additional Sessions Judge-cum-Spl. Judge, Kantamal, in which it has been indicated that out of 24 charge sheeted witnesses, 09 witnesses including informant have been examined and in the earlier communication submitted to this Court, it was stated that “Most of the remaining witnesses are official witnesses. They are not turning up in spite of repeated messages/summons which is causing delay in trial.”

5. It is the admitted case of the prosecution that the contraband (ganja) to the tune of 102 kg 950 grams was seized on 31.03.2019 from a house. The petitioner was allegedly seen running away from the spot and he was later on arrested on 28.06.2020.

6. It is stated by the learned counsel for the petitioner that conscious and exclusive possession cannot be attributed to the petitioner so as to warrant his further continuance in custody which, according to him is punitive.

7. Learned counsel for the State opposes the prayer and submits that the conduct of the petitioner is a relevant factor to be considered in allegations of this nature. He also relies on the statutory prescription under Section 37 of the NDPS Act to resist the prayer for bail.

8. As rightly stated by the learned counsel for the State, Mr. Pradhan that the bail in a case under the Special Act is an exception whereas negation is the rule (Ref: State of Madhya Pradesh vs. Kajad: (2001) 7 Supreme Court Cases 673). Paragraph-5 of the judgment in the case of Kajad (Supra) is extracted herein under;

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5. Section 37 of the Act provides that the offences under the Act shall be cognizable and non-bailable. It reads:

“37. Offences to be cognizable and non bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub- section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail”

The purpose for which the Act was enacted and the menace of drug trafficking which it intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule an